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Act of Sederunt (Sheriff Appeal Court Rules) 2021

Type Scottish-Statutory-Instrument

Publication 2021-12-09

Last updated 2025-01-01

State In force

Jurisdiction Scotland

Department King's Printer for Scotland

Source legislation.gov.uk

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Made: 9th December 2021

Laid before the Scottish Parliament: 10th December 2021

Coming into force: 6th January 2022

The Court of Session therefore makes this Act of Sederunt under the powers conferred by section14(7) of the Scottish Commission for Human Rights Act 2006[^f00002], section 104(1) of the Courts Reform (Scotland) Act 2014[^f00003] and all other powers enabling it to do so.

PART 1 — PRELIMINARY MATTERS

CHAPTER 1 — CITATION, COMMENCEMENT AND APPLICATION ETC.

Citation and commencement, etc.

1.1

(1) This Act of Sederunt may be cited as the Act of Sederunt (Sheriff Appeal Court Rules) 2021.

(2) It comes into force on 6th January 2022.

(3) A certified copy is to be inserted in the Books of Sederunt.

Application

1.2

These Rules apply to any appeal or application made under chapters 6 and 29 to 33 of these Rules.

Interpretation

1.3

(1) In this Act of Sederunt—

“the 2014 Act” means the Courts Reform (Scotland) Act 2014;

“advocate” means a practising member of the Faculty of Advocates;

“Chapter 7 procedure” has the meaning given by rule 7.1;

“Chapter 8 procedure” has the meaning given by rule 8.1;

“the Clerk” means the Clerk of the Sheriff Appeal Court;

“the Court” means the Sheriff Appeal Court;

“grounds of appeal” is to be construed in accordance with rule 6.2(2)(b);

“party litigant” has the meaning given by rule 4.1;

“procedural Appeal Sheriff” has the meaning given by paragraph 2(1) of schedule 1;

“procedural hearing” means a hearing under rule 7.9 or rule 29.13;

“sheriff court process” means—the sheriff court process for the cause that is appealed to the Court; orwhere the cause is recorded in an official book of the sheriff court, a copy of the record in that book certified by the sheriff clerk;

“sheriff’s note” means a note setting out the reasons for the decision appealed against;

“solicitor” means a person qualified to practise as a solicitor under section 4 of the Solicitors (Scotland) Act 1980[^f00004];

“timetable” means a timetable in—Form 7.2 issued under—rule 6.12(5)(a);rule 7.2(1); orrule 7.3(4)(b); orForm 29.5 issued under—rule 29.5(1);rule 29.6(6)(a); orrule 29.6(7)(b).

(2) In relation to an application under section 69(1) or 71(2) of the 2014 Act—

“appeal” includes that application;

“appellant” includes the applicant;

“note of appeal” includes an application in Form 29.2 or Form 29.14.

Computation of periods of time

1.4

If any period of time specified in these Rules expires on a Saturday, Sunday or public or court holiday, it is extended to expire on the next day that the office of the Clerk is open for civil business.

Administrative provisions

1.5

Schedule 1 makes provision about administrative arrangements for the Court, including its quorum.

Forms

1.6

(1) Where there is a reference in these Rules to a form, it is a reference to that form in schedule 2.

(2) Where these Rules require a form to be used, that form may be varied where the circumstances require it.

PART 2 — GENERAL PROVISIONS

CHAPTER 2 — RELIEF FOR FAILURE TO COMPLY

Relief for failure to comply with rules

2.1

(1) The Court may relieve a party from the consequences of a failure to comply with a provision in these Rules.

(2) The Court may do so only where the party shows that the failure is due to—

(a) mistake;

(b) oversight; or

(3) Where relief is granted, the Court may—

(a) impose conditions that must be satisfied before relief is granted;

(b) make an order to enable the appeal to proceed as if the failure had not occurred.

CHAPTER 3 — SANCTIONS FOR FAILURE TO COMPLY

Circumstances where a party is in default

3.1

A party is in default if that party fails—

(a) to comply with the timetable;

(b) to implement an order of the Court within the period specified in the order;

(d) otherwise to comply with any requirement imposed on that party by these Rules.

Sanctions where a party is in default

3.2

(1) This rule—

(a) applies where a party is in default;

(b) but does not apply where a party is in default because the party has failed to comply with rule18.4(1).

(2) The Court may make any order to secure the expeditious disposal of the appeal.

(3) In particular, the Court may either—

(a) refuse the appeal, where the party in default is the appellant; or

(b) allow the appeal, if the condition in paragraph (4) is satisfied, where either—

(i) the party in default is the sole respondent; or

(ii) every respondent is in default.

(4) The condition is that the appellant must show cause why the appeal should be allowed.

CHAPTER 4 — REPRESENTATION AND SUPPORT

Representation and support

4.1

(1) A natural person who is a party to proceedings may appear and act on that party’s behalf.

(2) That person is to be known as a party litigant.

(3) A party may be represented in any proceedings by—

(a) a legal representative (see rule 4.2); or

(b) a lay representative (see rule 4.3).

(4) A lay supporter (see rule 4.5) may assist a party litigant with the conduct of any proceedings.

Legal representation

4.2

A party is represented by a legal representative if that party is represented by an advocate or a solicitor.

Lay representation: applications

4.3

(1) This rule does not apply where any other enactment makes provision for a party to a particular type of case to be represented by a lay representative.

(2) A party is represented by a lay representative if that party is represented by a person who is not a legal representative.

(3) A party litigant may apply to the Court for permission to be represented by a lay representative.

(4) An application is to be—

(a) made by motion;

(b) accompanied by a document in Form 4.3 signed by the prospective lay representative.

(5) The Court may grant an application only if it considers that it would be in the interests of justice to do so.

(6) Where the Court grants permission, it may—

(a) do so in respect of one or more specified hearings;

(b) withdraw permission of its own accord or on the motion of any party.

Lay representation: functions, conditions and duties

4.4

(1) A lay representative may represent a party at any hearing at which permission has been granted under rule 4.3 or where any other enactment makes provision for a party to be represented by a lay representative.

(2) The party must appear along with the lay representative at any hearing where the lay representative is to represent the party.

(3) Where permission is granted under rule 4.3, the lay representative may do anything in the preparation or conduct of the hearing that the party may do.

(4) A party may show any document (including a court document) or communicate any information about the proceedings to that party’s lay representative without contravening any prohibition or restriction on the disclosure of the document or information.

(5) Where a document or information is disclosed under paragraph (4), the lay representative is subject to any prohibition or restriction on the disclosure in the same way that the party is.

(6) A lay representative must not receive, directly or indirectly, from the party any remuneration or other reward for assisting the party.

(7) Any expenses incurred by a party in connection with a lay representative are not recoverable expenses in the proceedings.

Lay support: applications

4.5

(1) A party litigant may apply to the Court for permission for a named person to assist the party litigant in the conduct of proceedings, and such a person is to be known as a lay supporter.

(2) An application is to be made by motion.

(3) The Court may refuse an application only if it is of the opinion that—

(a) the named person is an unsuitable person to act as a lay supporter (whether generally or in the proceedings concerned); or

(b) it would be contrary to the efficient administration of justice to grant it.

(4) The Court, if satisfied that it would be contrary to the efficient administration of justice for permission to continue, may withdraw permission—

(a) of its own accord; or

(b) on the motion of any party.

Lay support: functions, conditions and duties

4.6

(1) A lay supporter may assist a party by accompanying the party at hearings in court or in chambers.

(2) A lay supporter may, if authorised by the party, assist the party by—

(a) providing moral support;

(b) helping to manage court documents and other papers;

(d) quietly advising on—

(i) points of law and procedure;

(ii) issues which the party litigant might wish to raise with the Court.

(3) A party may show any document (including a court document) or communicate any information about the proceedings to that party’s lay supporter without contravening any prohibition or restriction on the disclosure of the document or information.

(4) Where a document or information is disclosed under paragraph (3), the lay supporter is subject to any prohibition or restriction on the disclosure in the same way that the party is.

(5) A lay supporter must not receive, directly or indirectly, from the party any remuneration or other reward for assisting the party.

(6) Any expenses incurred by a party in connection with a lay supporter are not recoverable expenses in the proceedings.

CHAPTER 5 — INTIMATION AND LODGING ETC.

Interpretation of this Chapter

5.1

(1) In this Chapter—

“first class post” means a postal service which seeks to deliver documents or other things by post no later than the next working day in all or the majority of cases;

“intimating party” means any party who has to give intimation in accordance with rule 5.2(1);

“receiving party” means any party to whom intimation is to be given in accordance with rule5.2;

“recorded delivery” means a postal service which provides for the delivery of documents or other things by post to be recorded.

(2) Where this Chapter authorises intimation to be given by electronic means—

(a) intimation may only be given by this method if the intimating party and the solicitor for the receiving party have notified the Court that they will accept intimation by electronic means at a specified email address;

(b) the intimation is to be sent to the specified email address of the solicitor for the receiving party.

(3) Where this Chapter authorises a document to be lodged by electronic means, it must be sent to the email address of the Court.

Intimation

5.2

(1) Unless the Court orders otherwise, where—

(a) any provision in these Rules requires a party to—

(i) lodge any document;

(ii) intimate any other matter; or

(b) the Court orders a party to intimate something,

intimation must be given to every other party.

(2) Where intimation relates to the lodging of a document, a copy of that document must be provided at the same time as intimation is made.

(3) Where the Court makes an order, the Clerk is to intimate the order to every party.

Methods of intimation

5.3

(1) Intimation may be given to a receiving party who is a party litigant by—

(a) the method specified in rule 5.4;

(b) any of the methods specified in rule 5.5.

(2) Intimation may be given to a receiving party who is represented by a solicitor by—

(a) the method specified in rule 5.4;

(b) any of the methods specified in rule 5.5;

Methods of intimation: recorded delivery

5.4

An intimating party may give intimation by recorded delivery to the receiving party.

Methods of intimation: by sheriff officer

5.5

(1) A sheriff officer may give intimation on behalf of an intimating party by—

(a) delivering it personally to the receiving party; or

(b) leaving it in the hands of—

(i) a resident at the receiving party’s dwelling place; or

(ii) an employee at the receiving party’s place of business.

(2) Where a sheriff officer has been unsuccessful in giving intimation in accordance with paragraph (1), the sheriff officer may give intimation by—

(a) depositing it in the receiving party’s dwelling place or place of business; or

(b) leaving it at the receiving party’s dwelling place or place of business in such a way that it is likely to come to the attention of that party.

Additional methods of intimation where receiving party represented by solicitor

5.6

(1) An intimating party may give intimation to the solicitor for the receiving party by—

(a) delivering it personally to the solicitor;

(b) delivering it to a document exchange of which the solicitor is a member;

(d) fax;

(e) electronic means.

(2) Where intimation is given by the method in paragraph (1)(a), (d) or (e) no later than 1700 hours on any day, the date of intimation is that day.

(3) Where intimation is given by the method in—

(a) paragraph (1)(b) or (c); or

(b) paragraph (1)(a), (d) or (e) after 1700 hours on any day,

the date of intimation is the next day.

Lodging

5.7

(1) Where any provision in these Rules requires a party to lodge a document, it is to be lodged with the Clerk.

(2) A document may be lodged by—

(a) delivering it personally to the office of the Clerk;

(b) delivering it to a document exchange of which the Clerk is a member;

(d) fax;

(e) electronic means, provided that parties have provided an email address in terms of rule13.5.

PART 3 — INITIATION AND PROGRESS OF AN APPEAL

CHAPTER 6 — INITIATION AND PROGRESS OF AN APPEAL

Application of this Chapter

6.1

This Chapter applies to an appeal against a decision of a sheriff in civil proceedings except—

(a) an application for a new trial under section 69(1) of the 2014 Act (see Chapter 29);

(b) an application to enter a jury verdict under section 71(2) of the 2014 Act (see Chapter29);

(d) an appeal under section 82 of the 2014 Act (see Chapter 31);

(e) an appeal by stated case under section 163(1), 164(1), 165(1) or 167(1) of the Children’s Hearings (Scotland) Act 2011[^f00006] (see Chapter 32);

(f) an appeal under section 38(3), 46(3) or 67(3) of the Age of Criminal Responsibility (Scotland) Act 2019[^f00007] (see Chapter 33);

(g) an appeal against an interlocutor granting decree of divorce in a simplified divorce application (see rule 33.81 of the Ordinary Cause Rules 1993)[^f00008];

(h) an appeal against an interlocutor granting decree of dissolution of civil partnership in a simplified dissolution of civil partnership application (see rule 33A.74 of the Ordinary Cause Rules 1993)[^f00009].

Form of appeal

6.2

(1) An appeal is made by lodging a note of appeal in Form 6.2.

(2) The note of appeal must—

(a) specify—

(i) the decision complained of;

(ii) the date on which the decision was made;

(iii) the date on which it was intimated to the appellant;

(iv) any other relevant information;

(b) state the grounds of appeal in brief specific numbered paragraphs setting out concisely the grounds on which it is proposed that the appeal should be allowed;

(d) where the sheriff’s note is available, have appended to it a copy of the note;

(e) where the sheriff’s note is not available, indicate whether the appellant—

(i) has requested that the sheriff writes a note and is awaiting its production;

(ii) requests that the sheriff write a note; or

(iii) considers that the appeal is sufficiently urgent that the Court should hear and determine the appeal without the sheriff’s note;

(f) state whether, taking into account the matters in rule 6.11(3), the appellant considers that the appeal should be appointed to Chapter 7 procedure or Chapter 8 procedure;

(g) be signed;

(h) where the appellant is represented by a solicitor, specify the name and business address of the solicitor.

Time for appeal

6.3

(1) An appeal must be made either—

(a) within 28 days after the date on which the decision appealed against was given; or

(b) where permission to appeal is required, within 7 days after the date on which permission was granted if that results in a later date.

(2) This rule does not apply where the enactment under which the appeal is made specifies a period within which the appeal must be made.

Applications to appeal out of time

6.4

(1) This rule applies where the enactment under which the appeal is made—

(a) specifies a period within which the appeal must be made; and

(b) provides that a party may apply to the Court to allow an appeal to be made outwith that period.

(2) An application to allow an appeal to be received out of time is to be made by motion.

(3) That motion is to be made when the note of appeal is lodged.

(4) The application is to be determined by a procedural Appeal Sheriff.

(5) Where a motion to allow an appeal to be received out of time is determined—

(a) the Clerk is to—

(i) notify the sheriff clerk of the outcome of the application;

(ii) transmit the note of appeal and the Court’s interlocutor to the sheriff clerk;

(b) the sheriff clerk is to place the note of appeal in the process.

(6) Where an application to allow an appeal to proceed out of time is granted, the appeal will proceed as if it had been made in time.

Order for intimation and answers

6.5

(1) Subject to paragraph (2), on the first available court day after the appeal is lodged, the Clerk must make an order for—

(a) intimation of the appeal, within 7 days after the date of the order, to be given to—

(i) the respondent;

(ii) any other person who appears to have an interest in the appeal;

(b) any person on whom the appeal is intimated to lodge answers in Form 6.5, if so advised, within 14 days after the date of intimation.

(2) The procedural Appeal Sheriff may vary the periods of 7 days and 14 days mentioned in paragraph (1)—

(a) of the procedural Appeal Sheriff’s own accord; or

(b) on cause shown, on the application of the appellant.

(3) That application must—

(a) be included in the note of appeal;

(b) give reasons for varying the period.

(4) Where an appeal is intimated under this rule, the appellant must lodge a certificate of intimation in Form 6.5-A within 14 days after the date of intimation, or such other period as the procedural Appeal Sheriff may direct.

(5) In the answers, the respondent or other interested party must state—

(a) his or her view on whether the appeal should be appointed to Chapter 7 procedure or Chapter 8 procedure;

(b) why he or she has reached that view, taking into account the matters mentioned in rule6.11(3).

Cross-appeals

6.6

(1) A respondent who seeks to—

(a) appeal against any decision of the sheriff; or

(b) challenge the grounds on which the sheriff made the decision appealed against,

may lodge grounds of cross-appeal in Form 6.6 within the period for lodging answers in accordance with an order under rule 6.5(1)(b) or, as the case may be, rule 6.5(2), together with a certificate of intimation in Form 6.5-A.

(2) The appellant may lodge answers to the respondent’s grounds of cross-appeal within 14 days after the grounds are intimated to the appellant.

Urgent disposal procedure

6.7

(1) The procedural Appeal Sheriff may order urgent disposal of an appeal—

(a) of the procedural Appeal Sheriff’s own accord; or

(b) on the application of the appellant or a respondent.

(2) The Clerk may refer an appeal to the procedural Appeal Sheriff to consider ordering urgent disposal.

(3) Where the appellant or a respondent seeks urgent disposal, an application for urgent disposal is to be made by motion.

(4) An application may be made—

(a) by the appellant, when the note of appeal is lodged;

(b) by the respondent, no later than the expiry of the period for lodging answers specified in rule 6.5(1)(b).

(5) Where the decision appealed against concerns an order made by the sheriff—

(a) under section 11(1) of the Children (Scotland) Act 1995 (court orders relating to parental responsibilities etc.)[^f00010];

(b) in relation to adoption; or

the appellant must seek urgent disposal.

(6) Where the procedural Appeal Sheriff proposes to order urgent disposal of the procedural Appeal Sheriff’s own accord—

(a) the Clerk must notify every party to the appeal;

(b) any party who objects to urgent disposal may make representations within such time and in such manner as the procedural Appeal Sheriff orders.

Urgent disposal objection: determination

6.8

(1) Where an application for urgent disposal made under rule 6.7(4) is opposed or a party makes representations objecting to urgent disposal in accordance with rule6.7(6)(b), before ordering urgent disposal the procedural Appeal Sheriff must—

(a) give parties an opportunity to be heard on the matter; or

(b) order the Clerk to intimate to parties that the matter will be considered on written submissions and specify the date by which such submissions are to be lodged.

(2) At a hearing under paragraph (1)(a) or in written submissions lodged under paragraph (1)(b), the parties must provide the procedural Appeal Sheriff with an assessment of the likely duration of the hearing to determine the appeal.

(3) When ordering urgent disposal of an appeal, the procedural Appeal Sheriff must make an order specifying—

(a) the procedure to be followed in the appeal;

(b) the number of appeal sheriffs who will hear the appeal, taking into account the matters mentioned in rule 6.11(3); and

(4) The procedural Appeal Sheriff must not make an order under rule 6.11(2) until the matter of urgent disposal has been determined.

Questions about competency

6.9

(1) A question about the competency of an appeal or cross-appeal may be referred to the procedural Appeal Sheriff by—

(a) any party; or

(b) the Clerk.

(2) A party may refer a question by lodging a reference in Form 6.9.

(3) A party may refer a question within the period for lodging answers, in accordance with rule6.5(1)(b) or, as the case may be, rule 6.6(2).

(4) The Clerk may refer a question at any time until the procedural Appeal Sheriff makes an order under rule 6.11(2).

(5) When a reference is made, the Clerk must fix a hearing and intimate the date and time of that hearing to the parties.

(6) When a reference is made by the Clerk and the procedural Appeal Sheriff considers that a question of competency arises, the order fixing the hearing must specify the question about the competency of the appeal or cross-appeal.

(7) The order fixing the hearing on a reference must specify the date by which notes of argument are to be lodged.

(8) The note of argument must—

(a) give fair notice of the submissions the party intends to make on the question of competency; and

(b) comply with the requirements in rule 7.7(3).

(9) Paragraphs (4) and (5) of rule 7.7 apply to the note of argument.

Questions about competency: determination

6.10

(1) At a hearing on the competency of an appeal, the procedural Appeal Sheriff may—

(a) refuse the appeal as incompetent;

(b) find the appeal to be competent; or

(2) The procedural Appeal Sheriff may make an order as to the expenses of the reference.

(3) Where the question of competency is referred to the Court, it may—

(a) refuse the appeal as incompetent; or

(b) find the appeal to be competent.

(4) The Court may make an order as to the expenses of the reference.

Initial case management of appeals

6.11

(1) This rule does not apply to an appeal that has been ordered for urgent disposal.

(2) Subject to rule 6.8(4), on expiry of the period for lodging answers and any grounds of cross-appeal, the procedural Appeal Sheriff must appoint an appeal to—

(a) Chapter 7 procedure; or

(b) Chapter 8 procedure.

(3) An appeal is to be appointed to such procedure as the procedural Appeal Sheriff considers proportionate for the disposal of the appeal, having regard to the following—

(a) any representations made by the parties;

(b) the value and importance of the claim;

(d) the presumption in paragraph (4).

(4) Without prejudice to the generality of paragraph (3), the following are presumed to be appropriate for Chapter 8 procedure in the absence of special circumstances—

(a) appeals from procedural decisions;

(b) appeals against decisions—

(i) granting decree by default;

(ii) refusing a reponing note;

(iii) granting interim or summary decree;

(iv) sisting an action.

(5) The Clerk must intimate an order under this rule to parties.

Sist of appeals

6.12

(1) Any party may apply by motion to—

(a) sist the appeal for a specified period; or

(b) recall the sist.

(2) An application to sist the appeal may only be granted on cause shown.

(3) The procedural Appeal Sheriff may—

(a) grant the application;

(b) refuse the application; or

(c) make an order not sought in the application, where the procedural Appeal Sheriff considers that doing so would secure the expeditious disposal of the appeal.

(4) Where the procedural Appeal Sheriff makes an order sisting the appeal, the Clerk must discharge any hearing already fixed under rule 7.2(2), rule 7.9(3)(a) or rule 8.2(1)(a).

(5) When a sist in an appeal under Chapter 7 procedure is recalled or expires, the Clerk must—

(a) issue a revised timetable in Form 7.2; and

(b) fix a procedural hearing.

(6) When a sist in an appeal under Chapter 8 procedure is recalled or expires, the Clerk must—

(a) fix a procedural hearing or a hearing of the appeal; and

(b) intimate the date and time of the procedural hearing or appeal to parties.

CHAPTER 7 — PROCEDURE BEFORE THREE APPEAL SHERIFFS

Application of this Chapter

7.1

This Chapter applies to an appeal which has been appointed to proceed under procedure before three Appeal Sheriffs, to be known as Chapter 7 procedure.

Timetable in appeal

7.2

(1) The Clerk must issue a timetable in Form 7.2 when an appeal is appointed to Chapter 7 procedure.

(2) When the Clerk issues a timetable, the Clerk must also fix a procedural hearing to take place after completion of the procedural steps specified in paragraph (4).

(3) The timetable specifies—

(a) the dates by which parties must comply with those procedural steps;

(b) the date and time of the procedural hearing.

(4) The procedural steps are the steps mentioned in the first column of the following table, provision in respect of which is found in the rule mentioned in the second column—

Procedural step	Rule
Lodging of appeal print	7.4(1)
Lodging of appendices to appeal print	7.5(1)
Giving notice that the appellant considers appendix unnecessary	7.6(1)
Lodging of notes of argument	7.7(1)
Lodging of estimates of duration of appeal hearing	7.8

Variation of timetable

7.3

(1) Any party may apply by motion to vary the timetable.

(2) An application to vary the timetable may only be granted on cause shown.

(3) The procedural Appeal Sheriff may—

(a) grant the application;

(b) refuse the application; or

(c) make an order not sought in the application, where the procedural Appeal Sheriff considers that doing so would secure the expeditious disposal of the appeal.

(4) Where the procedural Appeal Sheriff makes an order varying the timetable, the Clerk must—

(a) discharge the procedural hearing fixed under rule 7.2(2);

(b) issue a revised timetable in Form 7.2;

Appeal print

7.4

(1) The appellant must lodge an appeal print within 21 days after the timetable is issued under rule 7.2(1).

(2) An appeal print must contain—

(a) the pleadings in the sheriff court process;

(b) the interlocutors in the sheriff court process;

(3) Where the appeal is directed at the refusal of the sheriff to allow the pleadings to be amended, the appeal print must also contain the text of the proposed amendment.

Appendix to appeal print: contents

7.5

(1) The appellant must lodge an appendix to the appeal print no later than 14 days before the procedural hearing, unless rule 7.6(1) is complied with.

(2) The appendix must contain—

(a) any document lodged in the sheriff court process that is founded upon in the grounds of appeal;

(b) the notes of evidence from any proof, if it is sought to submit them for consideration by the Court.

(3) Where the sheriff’s note has not been included in the appeal print and it subsequently becomes available, the appellant must—

(a) include it in the appendix where the appendix has not yet been lodged; or

(b) lodge a supplementary appendix containing the sheriff’s note.

(4) The parties must—

(a) discuss the contents of the appendix;

(b) co-operate in making up the appendix.

(5) Where the Court at any stage considers further documents are necessary for the determination of the appeal, the appellant must lodge a supplementary appendix containing those documents.

Appendix to appeal print considered unnecessary

7.6

(1) Where the appellant considers that it is not necessary to lodge an appendix, the appellant must, no later than 14 days before the procedural hearing—

(a) give written notice of that fact to the Clerk;

(b) intimate that notice to every respondent.

(2) Where the appellant complies with paragraph (1), the respondent may apply by motion for an order requiring the appellant to lodge an appendix.

(3) An application under paragraph (2) must specify the documents or notes of evidence that the respondent considers should be included in the appendix.

(4) In disposing of an application, the procedural Appeal Sheriff may—

(a) grant the application and make an order requiring the appellant to lodge an appendix;

(b) refuse the application and make an order requiring the respondent to lodge an appendix; or

(5) Where the procedural Appeal Sheriff makes an order under paragraph (4)(a) or (b), that order must specify—

(a) the documents or notes or evidence to be included in the appendix;

(b) the time within which the appendix must be lodged.

Notes of argument

7.7

(1) The parties must lodge notes of argument no later than 14 days before the procedural hearing.

(2) A note of argument must summarise briefly the submissions the party intends to develop at the appeal hearing.

(3) A note of argument must—

(a) state, in brief numbered paragraphs, the points that the party intends to make;

(b) after each point, identify by means of a page or paragraph reference the relevant passage in any notes of evidence or other document on which the party relies in support of the point;

(i) state the proposition of law that the authority demonstrates;

(ii) identify the page or paragraph references for the parts of the authority that support the proposition;

(d) cite only one authority for each proposition of law, unless additional citation is necessary for a proper presentation of the argument.

(4) Where a note of argument has been lodged and the party lodging it subsequently becomes aware that an argument in the note is not to be insisted upon, that party must—

(a) give written notice of that fact to the Clerk;

(b) intimate that notice to every other party.

(5) Where a party wishes to advance an argument at a hearing that is not contained in that party’s note of argument, the party must apply by motion for leave to advance the argument.

Estimates of duration of appeal hearing

7.8

The parties must lodge estimates of the duration of any appeal hearing required to dispose of the appeal in Form 7.8 no later than 14 days before the procedural hearing.

Procedural hearing

7.9

(1) At a procedural hearing, the procedural Appeal Sheriff must ascertain the state of preparation of the parties, so far as reasonably practicable.

(2) The procedural Appeal Sheriff may—

(a) determine that parties are ready to proceed to an appeal hearing; or

(b) determine that further procedure is required.

(3) Where the procedural Appeal Sheriff determines that parties are ready to proceed—

(a) the procedural Appeal Sheriff must fix an appeal hearing;

(b) the Clerk must intimate the date and time of that hearing to the parties;

(c) the procedural Appeal Sheriff may make an order specifying further steps to be taken by the parties before the hearing.

(4) Where the procedural Appeal Sheriff determines that further procedure is required, the procedural Appeal Sheriff—

(a) must make an order to secure the expeditious disposal of the appeal;

(b) may direct the Clerk to fix a further procedural hearing and intimate the date and time of that hearing to parties.

Authorities

7.10

(1) When an appeal hearing is fixed, the appellant must, after consultation with the respondent and any other party to the appeal, lodge a joint list of authorities upon which each party intends to rely at the hearing.

(2) The appellant must lodge the joint list by the date specified in the interlocutor that fixes the appeal hearing.

(3) The joint list of authorities must not include—

(a) authorities for propositions not in dispute;

(b) more than 10 authorities, unless permission has previously been granted by the Court on cause shown for the lodging of additional authorities.

(4) The Court may make an order requiring parties to lodge a joint bundle of photocopies or electronic versions of the authorities or digital links to them.

(5) Joint lists of authorities which do not conform with this rule may be rejected.

(6) The Court may find no expenses are payable, or may modify any expenses, where authorities are included unnecessarily.

Transmission of sheriff court process

7.11

(1) The Court may order—

(a) of its own accord;

(b) on cause shown, where any party to the appeal applies for such an order by motion,

that the sheriff court process, or any part of it, must be transmitted to the Clerk.

(2) Where the procedural Appeal Sheriff makes such an order, the Clerk must send a copy of the order to the sheriff clerk.

(3) Within 4 days after receipt of the order, the sheriff clerk must—

(a) send written notice to each party to the cause;

(b) certify on the interlocutor sheet that sub-paragraph (a) has been complied with;

(4) On receipt of the sheriff court process, the Clerk must—

(a) mark the date of receipt on—

(i) the interlocutor sheet, where the entire process is transmitted;

(ii) the part of process that has been transmitted, where the procedural Appeal Sheriff has specified that only part of the process is to be transmitted;

(b) send written notice of that date to the parties.

(5) Where the Clerk or a sheriff clerk fails to comply with this rule—

(a) that does not affect the validity of the appeal;

(b) the procedural Appeal Sheriff may, as the procedural Appeal Sheriff thinks fit, make an order to enable the appeal to proceed as if the failure had not occurred.

Extension of notes of evidence

7.12

It is not necessary to produce notes of evidence in relation to any issue in respect of which the parties are agreed that the decision appealed against is not to be submitted to review.

Referral to family mediation

7.13

(1) Where the decision appealed against concerns an order made by the sheriff under section 11(1) of the Children (Scotland) Act 1995 (court orders relating to parental responsibilities etc.)[^f00011], the procedural Appeal Sheriff may refer that matter to a family mediator.

(2) In this rule, “family mediator” means a person accredited as a mediator in family mediation to an organisation which is concerned with such mediation and which is approved for the purposes of the Civil Evidence (Family Mediation) (Scotland) Act 1995[^f00012] by the Lord President of the Court of Session.

Application to transfer appeal to Chapter 8 procedure

7.14

(1) The procedural Appeal Sheriff may—

(a) of the procedural Appeal Sheriff’s own accord; or

(b) on the application of any party,

order that an appeal is to proceed under Chapter 8 procedure instead of Chapter 7 procedure.

(2) An application is to be made by motion.

(3) The procedural Appeal Sheriff may only make such an order if satisfied that, taking into account the matters in rule 6.11(3), it is no longer appropriate for the appeal to proceed under Chapter 7 procedure.

(4) That order must appoint the appeal to proceed under Chapter 8 procedure and specify—

(a) the procedure to be followed in the appeal;

(b) the periods for complying with each procedural step.

CHAPTER 8 — PROCEDURE BEFORE ONE APPEAL SHERIFF

Application of this Chapter

8.1

This Chapter applies to an appeal which has been appointed to proceed under procedure before one Appeal Sheriff, to be known as Chapter 8 procedure.

Hearing of appeal

8.2

(1) When an appeal has been appointed to proceed under Chapter 8 procedure, the Court must order the Clerk to—

(a) fix a hearing and intimate the date and time of that hearing to parties; or

(b) intimate to parties that the appeal will be considered on written submissions and specify the date by which such submissions are to be lodged.

(2) The Court may make any order required to regulate procedure in the appeal.

Notes of argument

8.3

(1) This rule applies where parties are ordered to lodge notes of argument.

(2) The parties must lodge notes of argument by the date specified in the order that fixes the hearing or in such other order the Court may make to regulate procedure in the appeal.

(3) A note of argument must summarise briefly the submissions the party intends to develop at the hearing.

(4) A note of argument must—

(a) state, in brief numbered paragraphs, the points that the party intends to make;

(b) after each point, identify by means of a page or paragraph reference the relevant passage in any notes of evidence or other document on which the party relies in support of the point;

(i) state the proposition of law that the authority demonstrates;

(ii) identify the page or paragraph references for the parts of the authority that support the proposition;

(d) cite only one authority for each proposition of law, unless additional citation is necessary for a proper presentation of the argument.

(5) Where a note of argument has been lodged and the party lodging it subsequently becomes aware that an argument in the note is not to be insisted upon, that party must—

(a) give written notice of that fact to the Clerk;

(b) intimate that notice to every other party.

(6) Where a party wishes to advance an argument at a hearing that is not contained in that party’s note of argument, the party must apply by motion for leave to advance the argument.

Authorities

8.4

(1) This rule applies where parties are ordered to lodge authorities.

(2) The appellant must, after consultation with the respondent and any other party to the appeal, lodge a joint list of authorities upon which each party intends to rely at the hearing.

(3) The appellant must lodge the joint list by the date specified in the order that fixes the hearing or in such other order the Court may make to regulate procedure in the appeal.

(4) The joint list of authorities must not include—

(a) authorities for propositions not in dispute;

(b) more than 10 authorities, unless permission has previously been granted by the Court on cause shown for the lodging of additional authorities.

(5) The Court may make an order requiring parties to lodge a joint bundle of photocopies or electronic versions of the authorities or digital links to them.

(6) Joint lists of authorities which do not conform with this rule may be rejected.

(7) The Court may find no expenses are payable, or may modify any award of expenses, where authorities are included unnecessarily.

Application to transfer appeal to Chapter 7 procedure

8.5

(1) The procedural Appeal Sheriff may—

(a) of the procedural Appeal Sheriff’s own accord; or

(b) on the application of any party,

order that an appeal is to proceed as an appeal under Chapter 7 procedure instead of Chapter 8 procedure.

(2) An application is to be made by motion.

(3) The procedural Appeal Sheriff may only make such an order if satisfied that, taking into account the matters in rule 6.11(3), it is no longer appropriate for the appeal to proceed under Chapter 8 procedure.

(4) That order must appoint the appeal to proceed under Chapter 7 procedure and specify the procedure to be followed in the appeal.

PART 4 — DISPOSAL OF AN APPEAL

CHAPTER 9 — REFUSAL OF APPEAL DUE TO DELAY

Application to refuse appeal due to delay

9.1

(1) Any party may apply to the procedural Appeal Sheriff to refuse the appeal if the conditions in paragraph (2) are met.

(2) The conditions are that—

(a) there has been an inordinate and inexcusable delay by—

(i) another party;

(ii) another party’s solicitor, lay representative or other agent; and

(b) unfairness has resulted from that delay.

(3) An application is to be made by motion.

(4) That motion must specify the grounds on which refusal of the appeal is sought.

Determination of application to refuse appeal due to delay

9.2

(1) The procedural Appeal Sheriff may refuse the appeal if the procedural Appeal Sheriff considers that—

(a) there has been an inordinate and inexcusable delay on the part of—

(i) any party;

(ii) any party’s solicitor, lay representative or other agent; and

(b) such delay results in unfairness specific to the factual circumstances, including the procedural circumstances, of the appeal.

(2) The procedural Appeal Sheriff must take into account the procedural consequences of allowing the appeal to proceed for—

(a) the parties to the appeal;

(b) the efficient disposal of business in the Court.

CHAPTER 10 — ABANDONMENT OF APPEAL

Application to abandon appeal

10.1

(1) An appellant may apply to the Court to abandon an appeal by lodging a minute of abandonment.

(2) The appellant must, at the same time as lodging a minute of abandonment, apply by motion to abandon in terms of the minute of abandonment.

(3) Where all of the parties consent to the abandonment of the appeal, the Court must refuse the appeal.

(4) Where the other parties do not consent to the abandonment of the appeal, the Court may either—

(a) refuse the application; or

(b) grant the application and refuse the appeal.

(5) If the Court refuses an appeal under this rule, it may make an order as to the expenses of the appeal.

(6) If the Court refuses an application, it may make an order as to the expenses of the application.

CHAPTER 11 — REMIT TO THE COURT OF SESSION

Application to remit appeal to the Court of Session

11.1

(1) An application under section 112 of the 2014 Act (remit of appeal from the Sheriff Appeal Court to the Court of Session) is to be made by motion.

(2) Within 4 days after the Court has made an order remitting an appeal to the Court of Session, the Clerk must—

(a) give notice of the remit to each party;

(b) certify on the interlocutor sheet that sub-paragraph (a) has been complied with;

(3) Failure by the Clerk to comply with paragraph (2)(a) or (b) does not affect the validity of a remit.

CHAPTER 12 — APPLICATIONS FOR PERMISSION TO APPEAL TO THE COURT OF SESSION

Application of this Chapter

12.1

This Chapter applies where a party seeks the permission of the Court to appeal to the Court of Session against a decision of the Court constituting final judgment in civil proceedings under section 113 of the 2014 Act (appeal from the Sheriff Appeal Court to the Court of Session).

Applications for permission to appeal

12.2

(1) An application to the Court for permission to appeal to the Court of Session is to be made in Form 12.2.

(2) Such an application must be lodged within 14 days after the date on which the Court gave its final judgment on the appeal.

(3) When an application is made, the Court must order the Clerk to either—

(a) fix a hearing and intimate the time and date of that hearing to the parties to the appeal; or

(b) intimate to parties that the application is to be considered on written submissions and specify the date by which such submissions are to be lodged.

(4) The application is, so far as reasonably practicable, to be considered by the Appeal Sheriff or Appeal Sheriffs who made the decision in respect of which permission to appeal is sought.

Applications for leave to appeal

12.3

(1) In any appeal to which section 113(4) of the Courts Reform (Scotland) Act 2014 applies and leave to appeal is required, a motion seeking leave of the Court must be lodged within 14 days after the date on which the Court gave its final judgment on the appeal.

(2) When such a motion is lodged, the Court must order the Clerk to either—

(a) fix a hearing and intimate the time and date of that hearing to the parties to the appeal; or

(b) intimate to parties that the motion is to be considered on written submissions and specify the date by which such submissions are to be lodged.

(3) The motion is, so far as reasonably practicable, to be considered by the Appeal Sheriff or Appeal Sheriffs who made the decision in respect of which leave to appeal is sought.

PART 5 — INCIDENTAL PROCEDURE: STANDARD PROCEDURES

CHAPTER 13 — MOTIONS: GENERAL

Interpretation

13.1

(1) In this Chapter, Chapter 14 and Chapter 15—

“court day” means a day on which the office of the Clerk is open;

“court day 1” means the court day on which a motion is treated as being intimated under rule14.1;

“court day 3” means the second court day after court day 1;

“court day 4” means the third court day after court day 1;

“lodging party” means the party lodging the motion;

“receiving party” means a party receiving the intimation of the motion from the lodging party;

“transacting motion business” means—intimating and lodging motions;receiving intimation of motions;intimating consent or opposition to motions;receiving intimation of opposition to motions.

(2) In this Chapter and Chapter 14, a reference to—

(a) the address of a party is a reference to the email address included in the list maintained under rule 13.5(4) of either—

(i) that party’s solicitor; or

(ii) that party;

(b) the address of the court is a reference to the email address of the court included in that list under rule 13.5(5).

Making of motions

13.2

A motion may be made either—

(a) orally, in accordance with rule 13.3; or

(b) in writing, in accordance with rule 13.4.

Oral motions

13.3

(1) A motion may be made orally during any hearing.

(2) Such a motion may only be made with leave of the Court.

Written motions

13.4

(1) A motion in writing is made by lodging it with the Clerk in accordance with Chapter14 or Chapter 15.

(2) Chapter 14 applies where each party to an appeal has provided to the Clerk an email address for the purpose of transacting motion business.

(3) Chapter 15 applies where a party to an appeal has not provided to the Clerk an email address for the purpose of transacting motion business.

Provision of email addresses to the Clerk

13.5

(1) A solicitor representing a party in an appeal must provide to the Clerk an email address for the purpose of transacting motion business.

(2) A solicitor who does not have suitable facilities for transacting motion business by email may make a declaration in writing to that effect, which must be—

(a) sent to the Clerk;

(b) intimated to each of the other parties to the appeal.

(3) A party who is not represented by a solicitor may provide to the Clerk an email address for the purpose of transacting motion business.

(4) The Clerk must maintain a list of the email addresses provided for the purpose of transacting motion business, which must be published in up to date form on the website of the Scottish Courts and Tribunals Service.

(5) The Clerk must also include on that list an email address of the Court for the purpose of lodging motions.

Grounds for written motion

13.6

A motion in writing must specify the grounds on which it is made.

Determination of unopposed motions in writing

13.7

(1) The Clerk may determine any unopposed motion in writing other than a motion which seeks a final interlocutor.

(2) Where the Clerk considers that such a motion should not be granted, the Clerk must refer the motion to the procedural Appeal Sheriff.

(3) The procedural Appeal Sheriff is to determine—

(a) a motion referred under paragraph (2);

(b) an unopposed motion which seeks a final interlocutor,

in chambers without the appearance of parties, unless the procedural Appeal Sheriff otherwise determines.

Issuing of orders by email

13.8

Where the Court makes an order determining a motion which was lodged in accordance with Chapter 14, the Clerk must email a copy of the order to the addresses of the lodging party and every receiving party.

CHAPTER 14 — MOTIONS LODGED BY EMAIL

Intimation of motions by email

14.1

(1) The lodging party must give intimation of that party’s intention to lodge the motion, and of the terms of the motion, to every other party by sending an email in Form 14.1 to the addresses of every party.

(2) The requirement under paragraph (1) to give intimation of a motion to a party by email does not apply where that party—

(a) has not lodged answers within the period of notice for lodging those answers;

(b) has withdrawn or is deemed to have withdrawn those answers; or

(3) A motion intimated under this rule must be intimated no later than 1700 hours on a court day.

Opposition to motions

14.2

(1) A receiving party must intimate any opposition to a motion by sending an email in Form 14.2 to the address of the lodging party.

(2) Any opposition to a motion must be intimated to the lodging party no later than 1700 hours on court day 3.

(3) Late opposition to a motion must be sent to the address of the Court and may only be allowed with the leave of the procedural Appeal Sheriff, on cause shown.

14.3

Where a receiving party seeks to consent to a motion, that party may do so by sending an email confirming the consent to the address of the lodging party.

Lodging unopposed motions

14.4

(1) This rule applies where no opposition to a motion has been intimated.

(2) The motion must be lodged by the lodging party no later than 1230 hours on court day 4 by sending an email in Form 14.1 headed “Unopposed motion” to the address of the court.

(3) That motion is to be determined by 1700 hours on court day 4.

(4) Where for any reason it is not possible for that motion to be determined in accordance with paragraph (3), the Clerk must advise the parties of that fact and give reasons.

Lodging opposed motions by email

14.5

(1) This rule applies where opposition to a motion has been intimated.

(2) The motion must be lodged by the lodging party no later than 1230 hours on court day 4 by—

(a) sending an email in Form 14.1 headed “Opposed motion”, to the address of the court; and

(b) attaching to that email the opposition in Form 14.2 intimated by the receiving party to the lodging party.

(3) That motion is to be heard by the procedural Appeal Sheriff on the first suitable court day after court day 4.

(4) The Clerk must intimate the date and time of the hearing to the parties.

Variation of periods of intimation

14.6

Where either—

(a) every receiving party in an appeal consents to a shorter period of intimation; or

(b) the Court shortens the period of intimation,

the motion may be lodged by the lodging party, or heard or otherwise determined by the Court at an earlier time and date than that which is specified in this Chapter.

CHAPTER 15 — MOTIONS LODGED BY OTHER MEANS

Intimation of motions by other means

15.1

(1) The lodging party must give intimation of that party’s intention to lodge the motion, and of the terms of the motion, to every other party in Form 15.1.

(2) That intimation must be accompanied by a copy of any document referred to in the motion.

Opposition to motions

15.2

(1) A receiving party may oppose a motion by lodging a notice of opposition in Form15.2.

(2) Any notice of opposition must be lodged within 7 days after the date of intimation of the motion.

(3) The procedural Appeal Sheriff may, on the application of the lodging party, either—

(a) vary the period of 7 days mentioned in paragraph (2); or

(b) dispense with intimation on any party.

(4) An application mentioned in paragraph (3) must—

(a) be included in the motion;

(b) give reasons for varying the period or dispensing with intimation, as the case may be.

(5) The procedural Appeal Sheriff may allow a notice of opposition to be lodged late, on cause shown.

15.3

Where a receiving party seeks to consent to a motion, that party may do so by lodging a notice to that effect.

Lodging of motions

15.4

(1) The motion must be lodged by the lodging party within 5 days after the date of intimation of the motion, unless paragraph (3) applies.

(2) The lodging party must also lodge—

(a) a certificate of intimation in Form 6.5-A;

(b) so far as practicable, any document referred to in the motion that has not already been lodged.

(3) Where the procedural Appeal Sheriff varies the period for lodging a notice of opposition to a period of 5 days or less, the motion must be lodged no later than the day on which that period expires.

Joint motions

15.5

(1) A joint motion by all parties need not be intimated.

(2) Such a motion is to be lodged by any of the parties.

Hearing of opposed motions

15.6

(1) Where a notice of opposition in Form 15.2 is lodged, the motion is to be heard by the procedural Appeal Sheriff on the first suitable court day after the lodging of the notice of opposition.

(2) The Clerk must intimate the date and time of the hearing to the parties.

Modification of Chapter 5

15.7

For the purposes of this Chapter, the following provisions in Chapter 5 do not apply—

(a) rule 5.6(1)(e);

(b) rule 5.7(2)(e).

CHAPTER 16 — MINUTES

Application of this Chapter

16.1

This Chapter applies to any application to the Court that is made by minute, other than a joint minute, a minute of abandonment or a minute of amendment.

Form and lodging of minute

16.2

(1) A minute is to be made in Form 16.

(2) A minute must—

(a) specify the order sought from the Court;

(b) contain a statement of facts supporting the granting of that order;

(3) A minute is to be lodged in the process of the appeal to which it relates.

Orders for intimation and answers

16.3

(1) On the first available court day after being lodged, a minute must be brought before the procedural Appeal Sheriff for an order—

(a) for intimation, within 7 days after the date of the order, to—

(i) every other party to the appeal;

(ii) any other person who appears to have an interest in the minute;

(b) for any person to whom the minute is intimated to lodge answers, if so advised, within 14days after the date of intimation;

(2) The procedural Appeal Sheriff may vary the periods of 7 days, 14 days and 28 days mentioned in paragraph (1) either—

(a) of the procedural Appeal Sheriff’s own accord; or

(b) on cause shown, on the application of the applicant.

(3) An application mentioned in paragraph (2)(b) must—

(a) be included in the minute;

(b) give reasons for varying the period.

(4) Where a minute is intimated in accordance with an order under this rule, the applicant must lodge a certificate of intimation in Form 6.5-A within 14 days after the date of intimation.

16.4

(1) Where a person to whom a minute is intimated seeks to consent to the minute, that person may do so by lodging a notice to that effect.

(2) Where every person to whom a minute is intimated consents to the minute, the procedural Appeal Sheriff is to determine the minute in chambers without the appearance of those persons, unless the procedural Appeal Sheriff otherwise determines.

Minutes of sist and transference

16.5

(1) This rule applies where a party to an appeal (“P”) dies or comes under legal incapacity while the appeal is depending before the Court.

(2) Any person who claims to represent P or P’s estate may apply to the Court by minute to be sisted as a party to the appeal.

(3) If no person makes an application under paragraph (2), any other party may apply to the Court by minute to transfer the appeal in favour of or against (as the case may be) the person who represents P or P’s estate.

(4) An application under paragraph (3) must be intimated to the person specified in the minute as representing P or P’s estate.

Applications to enter process as respondent

16.6

(1) A person to whom the appeal has not been intimated may apply by minute for leave to enter the process as a party minuter and lodge answers.

(2) A minute under paragraph (1) must specify—

(a) the applicant’s title and interest to enter the process;

(b) the basis for the answers that the applicant proposes to lodge.

(3) At the hearing fixed under rule 16.3(1)(c), the procedural Appeal Sheriff must determine whether the applicant has shown title and interest to enter the process.

(4) If the procedural Appeal Sheriff is satisfied, the procedural Appeal Sheriff may grant the applicant leave to enter the process and lodge answers.

(5) Where leave is granted, the procedural Appeal Sheriff is to make such further order as the procedural Appeal Sheriff thinks fit.

(6) In particular, such an order may include an order—

(a) varying any timetable;

(b) as to the expenses of the application.

CHAPTER 17 — AMENDMENT OF PLEADINGS

Amendment of sheriff court pleadings

17.1

(1) Any party to an appeal may apply by motion to amend the pleadings in the sheriff court process.

(2) A party seeking to amend must lodge a minute of amendment setting out the proposed amendment and, at the same time, lodge a motion to allow—

(a) the minute of amendment to be received;

(b) any other person to lodge answers, if so advised, within a specified period.

(3) Where the procedural Appeal Sheriff makes an order allowing a minute of amendment to be received and answered, the procedural Appeal Sheriff may—

(a) allow a period of adjustment of the minute of amendment and answers; and

(b) fix a hearing on the minute of amendment and answers as adjusted.

(4) Each party must, no later than 2 days before the hearing fixed under paragraph (3)(b), lodge a copy of their minute of amendment or answers with any adjustments made thereto in italic or bold type, or underlined.

(5) The procedural Appeal Sheriff may make such order in relation to expenses, and may impose such conditions, as the procedural Appeal Sheriff thinks fit.

(6) Where the procedural Appeal Sheriff—

(a) allows an amendment to the pleadings in the sheriff court process; and

(b) considers that the amendment makes a material change to the pleadings,

the procedural Appeal Sheriff may recall the decision appealed against and remit the matter to the sheriff for a further hearing.

Amendment of note of appeal and answers etc.

17.2

(1) A party who has lodged a document specified in paragraph (2) may apply by motion to amend that document.

(2) The documents are—

(a) a note of appeal;

(b) answers to a note of appeal;

(d) answers to grounds of appeal in a cross-appeal.

(3) Such a motion must include the text of the proposed amendment.

(4) An application under paragraph (1) must be accompanied by an application to vary the timetable under rule 7.3(1) or rule 29.6(1)(c) if such an application is necessary.

CHAPTER 18 — WITHDRAWAL OF SOLICITORS

Interpretation of this Chapter

18.1

In this Chapter, “peremptory hearing” means a hearing at which a party whose solicitor has withdrawn from acting must appear or be represented in order to state whether or not the party intends to proceed.

Giving notice of withdrawal to the Court

18.2

(1) Where a solicitor withdraws from acting on behalf of a party, the solicitor must give notice in writing to the Clerk and to every other party.

(2) Paragraph (1) does not apply if the solicitor withdraws from acting at a hearing in the presence of the other parties or their representatives.

(3) Paragraph (4) applies if a solicitor who withdraws from acting is aware that the address of the party for whom the solicitor acted has changed from that specified in the instance of the note of appeal or answers to the note of appeal.

(4) The solicitor must disclose to the Clerk and every other party the last known address of the party for whom the solicitor acted.

Arrangements for peremptory hearing

18.3

(1) On the first available court day after notice is given under rule 18.2(1), the procedural Appeal Sheriff must make an order—

(a) ordaining the party whose solicitor has withdrawn from acting to appear or be represented at a peremptory hearing;

(b) fixing a date and time for the peremptory hearing;

(c) appointing any other party to the appeal to intimate the order and a notice in Form 18.3 to that party within 7 days after the date of the order.

(2) A peremptory hearing must be fixed no sooner than 14 days after the date on which an order is made under paragraph (1).

(3) The procedural Appeal Sheriff may vary the period of 7 days mentioned in paragraph (1) or the period of 14 days mentioned in paragraph (2) either—

(a) of the procedural Appeal Sheriff’s own accord; or

(b) on cause shown, on the application of any other party to the appeal.

(4) Where any previously fixed hearing is to occur within 14 days after the date on which the procedural Appeal Sheriff is to make an order under paragraph (1), the procedural Appeal Sheriff may continue consideration of the matter to the previously fixed hearing instead of making an order under paragraph (1).

(5) Where an order and a notice in Form 18.3 are intimated under this rule, the party appointed to intimate them must lodge a certificate of intimation in Form 6.5-A either—

(a) within 14 days after the date of intimation; or

(b) before the peremptory hearing,

whichever is sooner.

Peremptory hearing

18.4

(1) At a peremptory hearing, the party must appear or be represented in order to state whether the party intends to proceed.

(2) Where the party fails to comply with paragraph (1), the Court may make an order mentioned in paragraph (3) only if it is satisfied that the order and notice in Form 18.3 have been intimated to that party.

(3) The orders are either—

(a) if the party is the appellant, an order refusing the appeal; or

(b) if the party is the respondent and the condition in paragraph (4) is satisfied, an order allowing the appeal.

(4) The condition is that the appellant must show cause why the appeal should be allowed.

(5) If the Court is not satisfied that the order and notice in Form 18.3 have been intimated to that party, it may make—

(a) an order fixing a further peremptory hearing;

(b) any other order that the Court considers appropriate to secure the expeditious disposal of the appeal.

CHAPTER 19 — CAUTION AND SECURITY

Application of this Chapter

19.1

This Chapter applies to any appeal in which the Court has power to order a person to find caution or give other security.

Form of application to find caution or give security

19.2

An application—

(a) for an order for caution or other security;

(b) to vary or recall such an order,

is to be made by motion.

Orders for caution or other security: time for compliance

19.3

Where the Court makes an order for caution or to give other security, the order must specify the period within which caution is to be found or security given.

Methods of finding caution or giving security

19.4

(1) A person who is ordered to find caution must do so by obtaining a bond of caution.

(2) A person who is ordered to consign a sum of money into court must do so by consignation under the Sheriff Courts Consignations (Scotland) Act 1893[^f00013] in the name of the Clerk.

(3) The Court may order a person to give security by—

(a) a method other than those mentioned in paragraphs (1) and (2);

(b) a combination of two or more methods of security.

(4) Any document by which an order to find caution or give security is satisfied must be lodged in process.

(5) A document lodged under paragraph (4) may not be borrowed from process.

Cautioners and other guarantors

19.5

A bond of caution or other security may only be given by a person who is an authorised person within the meaning of section 31 of the Financial Services and Markets Act 2000 (authorised persons)[^f00014].

Form of bond of caution

19.6

(1) A bond of caution must oblige the cautioner to make payment of the sums as validly and in the same manner as the party is obliged.

(2) In this rule—

“cautioner” includes the cautioner’s heirs and executors;

“party” means the person to whom the cautioner is bound, and that person’s heirs and successors;

“the sums” are the sums for which the cautioner is bound to the party.

Caution or other security: sufficiency and objections

19.7

(1) The Clerk must be satisfied that any document lodged in process under rule 19.4(4) is in proper form.

(2) A party who is dissatisfied with the sufficiency or form of any document lodged in process under rule 19.4(4) may apply to the Court by motion for an order under rule 19.9(1).

Insolvency or death of cautioner or guarantor

19.8

(1) This rule applies where caution has been found by bond of caution or security has been given by guarantee.

(2) Where one of the events specified in paragraph (3) occurs, the party entitled to benefit from the caution or guarantee may apply to the Court by motion for further caution to be found or further security to be given.

(3) The events are that the cautioner or guarantor—

(a) becomes apparently insolvent within the meaning of section 16 of the Bankruptcy (Scotland) Act 2016 (meaning of “apparent insolvency”)[^f00015];

(b) calls a meeting of the cautioner or guarantor’s creditors to consider the state of that person’s affairs;

(d) is a company and—

(i) an administration, bank administration or building society special administration order has been made in respect of it;

(ii) a winding up, bank insolvency or building society insolvency order has been made in respect of it;

(iii) a resolution for its voluntary winding up has been passed;

(iv) a receiver of all or any part of its undertaking has been appointed;

(v) a voluntary arrangement within the meaning of section 1(1) of the Insolvency Act 1986 (those who may propose an arrangement)[^f00016] has been approved under Part I of that Act.

Failure to find caution or give security

19.9

(1) Where a person who has been ordered to find caution or give security fails to do so, any other party may apply to the Court by motion for a finding that the person is in default.

(2) Despite rule 3.1, a person who fails to find caution or give security is only in default if the Court grants a motion under paragraph (1) and makes a finding that the person is in default.

CHAPTER 20 — EXPENSES

Taxation of expenses

20.1

(1) Where the Court makes an award of expenses in any appeal, those expenses must be taxed before decree is granted for them.

(2) This rule does not apply where the Court modifies those expenses to a fixed sum.

Time for lodging account of expenses

20.2

(1) A party found entitled to expenses must lodge an account of expenses in process—

(a) no later than 4 months after the final judgment; or

(b) at any time with permission of the court, but subject to such conditions, if any, as the Court thinks fit to impose.

(2) Where the account of expenses is lodged by the Scottish Legal Aid Board in reliance on regulation 39(2)(a) of the Civil Legal Aid (Scotland) Regulations 2002 (recovery of expenses)[^f00017], paragraph (1)(a) applies as if the period specified there is 8 months.

(3) In this rule, “final judgment” has the meaning assigned by section 136(1) of the 2014 Act (interpretation).

Diet of taxation

20.3

(1) Where an account of expenses is lodged for taxation, the Clerk must transmit the account and the process to the auditor of court.

(2) Subject to paragraph (3), the auditor of court must fix a diet of taxation on receipt of—

(a) the account of expenses;

(b) the process;

(d) a letter addressed to the auditor of court—

(i) confirming that the items referred to in sub-paragraphs (a) and (c) have been intimated to the party found liable in expenses; and

(ii) providing such information as is required to enable the auditor of court to give intimation to the party found liable in expenses in accordance with paragraph (4)(b).

(3) The auditor of court may fix a diet of taxation where paragraph (2)(c) or (d), or both, have not been complied with.

(4) The auditor of court must intimate the diet of taxation to—

(a) the party found entitled to expenses;

(b) the party found liable in expenses.

(5) The party found liable in expenses must, no later than 1600 hours on the fifteenth day before the diet of taxation, intimate to the auditor of court and to the party found entitled to expenses particular points of objection, specifying each item objected to and stating concisely the nature and ground of objection.

(6) Subject to paragraph (7), if the party found liable in expenses fails to intimate points of objection under paragraph (5) within the time limit set out there, the auditor of court must not take account of them at the diet of taxation.

(7) Where a failure to comply with the requirement contained in paragraph (5) was due to mistake, oversight or other excusable cause, the auditor of court may relieve a party of the consequences of such failure on such conditions, if any, as the auditor thinks fit.

(8) At the diet of taxation, or within such reasonable period of time thereafter that the auditor of court may allow, the party found entitled to expenses must make available to the auditor of court all documents, drafts or copies of such documents sought by the auditor and relevant to the taxation.

(9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Auditor’s statement

20.4

(1) The auditor of court must—

(a) prepare a statement of the amount of expenses as taxed;

(b) transmit the process, the taxed account and the statement to the Clerk;

(c) on the day on which the documents referred to in sub-paragraph (b) are transmitted, intimate that fact and the date of the report to each party to whom the auditor intimated the diet of taxation.

(2) The party found entitled to expenses must, within 7 days after the receipt of intimation under paragraph (1)(c), send a copy of the taxed account to the party found liable in expenses.

(3) Where no objections are lodged under rule 20.5(1), the court may grant decree for the expenses as taxed.

Objections to taxed account

20.5

(1) A party to an appeal who has appeared or been represented at a diet of taxation may object to the auditor of court’s statement by lodging in process a note of objection within 14 days after the date of the statement.

(2) The party lodging a note of objection is referred to in this rule as “the objecting party”.

(3) On lodging the note of objection the objecting party must apply by motion for an order—

(a) allowing the note to be received;

(b) allowing a hearing on the note of objection.

(4) On the granting of the order mentioned in paragraph (3), the objecting party must intimate to the auditor of court—

(a) the note of objection;

(b) the interlocutor containing the order.

(5) Within 14 days after receipt of intimation of the items mentioned in paragraph (4), the auditor of court must lodge in process a statement of reasons in the form of a minute stating the reasons for the auditor’s decision in relation to the items to which objection is taken in the note.

(6) On the lodging of the statement of reasons, the Clerk must fix a hearing on the note of objection.

(7) At the hearing, the Court may—

(a) sustain or repel any objection in the note of objection or remit the account of expenses to the auditor of court for further consideration;

(b) find any party liable in the expenses of the procedure on the note of objection.

Decree for expenses in name of solicitor

20.6

The Court may allow a decree for expenses to be extracted in the name of the solicitor who conducted the appeal.

Expenses of curator ad litem appointed to a respondent

20.7

(1) This rule applies where a curator ad litem is appointed to any respondent to an appeal.

(2) The appellant is responsible in the first instance for the payment of the expenses of a curator ad litem mentioned in paragraph (3).

(3) Those expenses are any fees of the curator ad litem and any outlays incurred by the curator from the date of appointment until any of the following steps occur—

(a) the lodging of a minute stating that the curator does not intend to lodge answers to the note of appeal;

(b) the lodging of answers by the curator, or the adoption of answers that have already been lodged; or

CHAPTER 21 — QUALIFIED ONE-WAY COSTS SHIFTING

Application and interpretation of this Chapter

21.1

(1) This Chapter applies in civil proceedings, where either or both—

(a) an application for an award of expenses is made to the Court;

(b) such an award is made by the Court.

(2) Where this Chapter applies—

(a) rules 10.1(5) and (6);

(b) any common law rule entitling a pursuer to abandon an appeal, to the extent that it concerns expenses,

are disapplied.

(3) In this Chapter—

“the 2018 Act” means the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018[^f00018];

“the applicant” has the meaning given in rule 21.2(1), and “applicants” is construed accordingly;

“civil proceedings” means civil proceedings to which section 8 of the 2018 Act (restriction on pursuer’s liability for expenses in personal injury claims) applies.

Application for an award of expenses

21.2

(1) Where civil proceedings have been brought by a pursuer, another party to the action (“the applicant”) may make an application to the Court for an award of expenses to be made against the pursuer, on one or more of the grounds specified in either or both—

(a) section 8(4)(a) to (c) of the 2018 Act;

(b) paragraph (2) of this rule.

(2) The grounds specified in this paragraph, which are exceptions to section 8(2) of the 2018 Act, are as follows—

(a) failure by the pursuer to obtain an award of damages greater than the sum offered by way of a tender lodged in process;

(b) unreasonable delay on the part of the pursuer in accepting a sum offered by way of a tender lodged in process;

Award of expenses

21.3

(1) Subject to paragraph (2), the determination of an application made under rule 21.2(1) is at the discretion of the Court.

(2) Where, having determined an application made under rule 21.2(1), the Court makes an award of expenses against the pursuer on the ground specified in rule21.2(2)(a) or (b)—

(a) the pursuer’s liability is not to exceed the amount of expenses the applicant has incurred after the date of the tender;

(b) the liability of the pursuer to the applicant, or applicants, who lodged the tender is to be limited to an aggregate sum, payable to all applicants (if more than one) of 75% of the amount of damages awarded to the pursuer and that sum is to be calculated without offsetting against those expenses any expenses due to the pursuer by the applicant, or applicants, before the date of the tender;

(c) the Court must order that the pursuer’s liability is not to exceed the sum referred to in sub-paragraph (b), notwithstanding that any sum assessed by the Auditor of Court as payable under the tender procedure may be greater or, if modifying those expenses to a fixed sum in terms of rule 20.1(2), that such sum does not exceed that referred to in sub-paragraph (b);

(d) where the award of expenses is in favour of more than one applicant the Court, failing agreement between the applicants, must apportion the award of expenses recoverable under the tender procedure between them.

(3) In the event that the Court makes an award of expenses against the pursuer on the ground specified in rule 21.2(2)(c), the Court may make such orders in respect of expenses, subject to such conditions, if any, as it considers appropriate.

Procedure

21.4

(1) An application under rule 21.2(1)—

(a) must be made by motion, in writing;

(b) may be made at any stage in the case prior to the granting of an order disposing of the expenses of the appeal.

(2) Where an application under rule 21.2(1) is made, the Court may make such orders as it thinks fit for dealing with the application, including an order—

(a) requiring the applicant to intimate the application to any other person;

(b) requiring any party to lodge a written response;

(d) fixing a hearing.

Award against legal representatives

21.5

Section 8(2) of the 2018 Act does not prevent the Court from making an award of expenses against a pursuer’s legal representative in terms of section 11 (awards of expenses against legal representatives) of that Act.

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